At about 6 p.m. on Saturday, July 22, 2006, a group of seven people (one a minor) met at a light rail station in downtown Minneapolis, while the city was in the midst of hosting a week-long summer festival known as the Aquatennial. Their plan was to protest the “mindless” nature of consumer culture by walking through the downtown area dressed as zombies - wearing white powder and fake blood on their faces and dark makeup around their eyes.
From their meeting place, the “zombies” proceeded down Nicollet Mall, walking in a stiff, lurching fashion. They carried four bags of sound equipment. One bag contained an iPod, a radio transmitter, an antenna, and a wireless phone handset. The others contained radio receivers, amplifiers, and speakers. Some of the equipment, including wiring, was visible on the outside of the bags.
As they “danced” their way down the street, they played music from the iPod, through the radio devices, and over the speakers. They also broadcasted announcements such as “get your brains here” and “[b]rain cleanup in Aisle 5” by speaking into the wireless phone handset. The “zombies” came within three feet of bystanders, and received “weird” looks from some they passed.
At around 7 p.m., Minneapolis police received word of an anonymous 911 call complaining about a group of “people covered in make up playing loud music from a boombox.” According to the caller, the group’s members were “calling themselves zombies and almost touching people.”
Officers responded to the call and found the zombies playing music and dancing. When approached by the officers, the zombies explained that they meant their actions as an “anticonsumerist” commentary. According to the officers, the zombies” were “walking around, coming up close to people,” and pedestrians were “scooting away from them.” The officers informed the zombies that their conduct had garnered a complaint, and asked them to turn down their music and keep their distance from bystanders. After this brief exchange, the officers allowed the zombies to continue on their way.
One of the officers, who was in charge of patrolling the area for drunk people that evening, expressed concern that the zombies were affiliated with the Juggalos, a violent gang from Washington State known for wearing face paint. The officers then decided to approach the zombies again, in an effort to identify them.
When the officers found them, the zombies were no longer dancing or playing music, but were gathered on a sidewalk. As part of a larger crowd, the zombies had just finished watching an outdoor performance by a high school drumline. According to the officers, a young girl with her father saw the zombies and became frightened.
The officers asked the zombies for identification, but most of them were not carrying identification with them. The officers informed the zombies that they were being taken to the police station to be identified. One of the zombies asked whether they were being “detained,” and one of the officers responded, “Yes.” The zombie asked, “What’s the charge?” The officer said, “I don’t know, let’s call it disorderly conduct for now.” The officers escorted the zombies to a station several blocks away.
At the station, the zombies were met by numerous officers, including the officer in charge, who acted like “a drill sergeant with new recruits,” and said that he didn’t “give a g**damn about anybody’s constitutional f***ing rights.” The zombies were patted down and placed in a holding cell, from which they were removed one at a time for questioning about their identities. In addition, officers searched the zombies’ bags. Based on the equipment inside, the police became concerned that the bags were dangerous, and requested that they be inspected by a bomb technician who determined that the bags did not contain explosives.
However, the officer in charge, ordered the zombies booked into jail on charges of displaying simulated weapons of mass destruction (“WMD”), a state offense punishable by up to ten years’ imprisonment.
All but one of the zombies were transported to the Hennepin County Adult Detention Center (the juvenile went to the juvenile detention center). During the booking process, one of the zombies refused to reveal his last name. Jail officials noted that he had metal accessories in his hair, and placed him in a holding cell where he could remove them. They also noted that he had a prosthetic left leg, from the knee down, that contained metal parts. After discussing his medical condition with the nurse on duty, the zombie was taken to another room, where his prosthetic leg was confiscated by a detention deputy. The nurse explained to the zombie that the leg was seized out of concern that it could be used as a weapon. The zombie agreed to provide his last name in order to finish the booking process and obtain a property receipt for his leg. He was given a wheelchair and was eventually placed in an ADA-compliant cell.
On the following Monday, after spending two nights in jail, the zombies were released from custody. A sergeant reviewing the zombies’ arrests had examined the equipment seized from their bags, and concluded that the equipment did not meet the definition of simulated WMD. At the time of release, the zombies received back all of their seized property, including the prosthetic leg. Authorities never filed a formal criminal complaint against any of the zombies.
The zombies filed suit in Minnesota state court against the City of Minneapolis and thirteen of its police officers. Their complaint included allegations that they were arrested “without any cause to believe that they had committed a crime,” in violation of the Fourth Amendment, and that they were seized in retaliation for “exercising their basic and fundamental right to engage in artistic and political expression,” in violation of the First Amendment.
You are the judge. What is your decision?
Attorney Robert Lombardo came from the creative world and then began practicing law in 1995. The diversity of his professional life (years of which were spent in Europe, Australia and Japan) gives him a unique perspective on the law. Currently Robert is focusing on entertainment law (which encompasses nearly all creative industries) and brings this firsthand experience and desire to make the law accessible to the The Whole 9 community.